Legal Sidebari

The Declare War Clause, Part 1: Overview and Introduction

September 30, 2024

This Legal Sidebar is the first installment in an eight-part series that discusses the Declare War Clause in Article I, Section 8, Clause 11 of the Constitution, which grants Congress the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water[.]” The power to take the nation to war is a central element of the Constitution’s scheme of war powers, but interpretation of the Declare War Clause is complex and evolving. This Sidebar series discusses the Supreme Court’s jurisprudence related to declarations of war and highlights interbranch practices that illuminate the executive and legislative branches’ sometimes differing interpretations of the clause.

Part 2 of this series discusses the Declare War Clause’s background, drafting, and ratification history. Part 3 introduces authorizations for use of military and force and examines the ongoing debate over initiating military action. Parts 4 through 8 cover relevant jurisprudence and interbranch practice by surveying early American conflicts; the Civil War; the Spanish-American War through the Second World War; the Cold War and Korean War; and the Vietnam War through 21^st-century conflicts. Additional information on Congress’s war powers and the President’s powers as Commander-in-Chief can be found in the Constitution Annotated.

Overview of Congressional War Powers

When the Framers of the Constitution gathered in Philadelphia to draft the document that would become the Constitution, one of their principal objectives was to improve the United States’ ability to ensure its peace and security through military force, if necessary. In line with that aim, the Constitution’s Preamble makes securing the common defense one of the Union’s principal purposes, and the articles that follow the Preamble allocate broad control over national security to the federal government while denying most war powers to the states.

Although courts and commentators occasionally discuss the “war power” as if it were a unified authority, the Supreme Court has explained that “the Constitution spells out the war powers not in a single, simple phrase, but in many broad, interrelated provisions.” In Article I, the Constitution empowers Congress to provide for the common defense through a series of enumerated war and national security powers. Central among these is Clause 11 of Article I, Section 8, which authorizes Congress to declare war. Clause 11 also

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empowers Congress to issue instruments, known as letters of marque and reprisal, which permit private citizens to capture or destroy enemy property, and authorizes Congress to make rules concerning captures of enemy property on land or at sea.

Apart from Clause 11, other clauses in Article I, Section 8 grant Congress the power to define and punish offenses against the law of nations; raise and support armies; establish and maintain a navy; make rules for the armed forces; “provide for calling forth the Militia”; and “provide for organizing, arming, and disciplining, the Militia, and for governing” the militia when in the service of the United States. General congressional authorities, such as the power over appropriations and the Necessary and Proper Clause, supplement these enumerated war powers. Finally, the Supreme Court has sometimes stated that the United States possesses inherent war powers that derive from its role as a sovereign country rather than from an affirmative grant in the Constitution. Other times, however, the Court has expressed the view that the federal governments’ war powers, while expansive, “are only those which are to be derived from the Constitution . . . .”

Breadth of Congressional War Powers

Congress’s collective war powers provide it with broad authority to support the country’s war efforts in a variety of ways. The Supreme Court has held congressional war powers include the power to provide for compulsory military service through the draft, protect servicemembers’ health and needs during and after active duty, control domestic industry and infrastructure to support war needs, close nonessential industries, impose rent and price controls, permit the government to renegotiate war contracts to recoup excessive profits, and enact other trade and economic legislation. Although these powers are extensive, the Supreme Court has also stated that the Constitution applies equally in times of war and peace, and that there are constitutional limits on congressional war authority. For example, the Court has held that protections of individual rights in the Bill of Rights limit Congress’s power to use military commissions to try American civilians when federal courts are open and functioning and prohibit Congress from imposing cruel and unusual punishment on deserters from the military.

Introduction to the Declare War Clause

The Declare War Clause is a central element of Congress’s war powers and has been heavily debated. The Supreme Court has observed that only Congress has the power to declare war, but the implications of this exclusive assignment are not well-settled. In particular, the relationship between Congress’s power to declare war and the President’s war powers granted under Article II of the Constitution is the subject of significant disagreement.

The first draft of the Constitution considered in Philadelphia in 1787 would have given Congress the power to “make war,” but the Framers substituted the word “declare” in what James Madison described as an effort to ensure that the President was empowered to repel sudden attacks. Under Congress’s interpretation of the Constitution, the President may only introduce troops into hostilities in three circumstances: (1) following a congressional declaration of war; (2) following congressional authorization of the use of force; or (3) following a national emergency created by an attack on U.S. territory. The executive branch claims much broader authority and asserts that the Constitution empowers the President to initiate and engage in many types of military action without congressional authorization.

While this interbranch debate remains active, other questions concerning the Declare War Clause have been settled by long-standing practice and judicial opinions. For example, the Supreme Court has recognized that Congress need not issue a full declaration of war to authorize the United States to engage in military action. Congress can also enact statutory authorizations for the use of force that permit the President to use force within defined parameters, but do not constitute a formal declaration of war. The United States has issued declarations of war against 11 countries during 5 conflicts, but it has not formally

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declared war since the Second World War. As a result, statutory authorizations have become the predominate method for Congress to permit military action since the mid-20^th century.

The Supreme Court has also observed that the Declare War Clause permits Congress do more than simply place two nations in a state of war. “The power to declare war,” the Supreme Court stated in 1870, “involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.” In line with this interpretation, Congress has enacted an extensive set of statutes that trigger a host of special wartime authorities concerning the military, foreign trade, energy, communications, alien enemies, and other issues if Congress declares war.

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Author Information

Steve P. Mulligan Attorney-Adviser

Disclaimer

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